2014 PLP 2635 (YLR)

ABDUL RASOOL MEMON, J.

The facts of the case which have occasioned this revision filed under sections 435/439, Cr.P.C. are that applicant Nisar Ahmed stood surety for accused Imamuddin alias Imam Bux alias Immo son of Malook Narejo in the court of Judge ATC Khairpur who is booked in Crime No.16/2003 under sections 365-K, 324, 342, 148, 149, P.P.C. r/w section 7 ATA for the sum of Rs.4 lac and bound down himself for producing the accused before the said court. The accused Imamdin who was on bail, remained absent while the matter was called on 15-1-2010. The trial court cancelled bail bond of accused and issued notice to his surety. For convenience the order passed in daily diary sheet dated 15-1-2010 is reproduced as under:-- "Case called with 2 amalgamated cases. At inside the Jail trial camp at C.P-I Sukkur. Accused Memin present inside the jail. Accused Nooral not produced by the jail authorities from C.P Khairpur due to his ailment. Accused Ayoub, Sadaro present on bail. Accused Imamdin called absent who is on bail, his bail bond is cancelled and issued notice to surety under section 514 Cr.P.C. SPP present. D.C. for accused Sadoro, Ayoub and Momin called absent. Advocate for accused Nooral, Imamdin and absconding accused present. P.Ws. Rahim Bux, SIP-Amanullah and Ali Gul present and bound down. The case property produced by the police. Put off to 9-2-2010 for evidence/ want of D.C. Accused remanded to jail and accused present on bail directed to attend on the date of hearing. Office is directed to issue NBW against the accused Imamdin."(under lining is of us). It is relevant to mention here that the notice to surety was issued but the same could not be served and on 2-11-2011 the process server returned notice issued to surety Nisar with endorsement that B.Ws could not be served upon the surety but the learned Judge held that surety is avoiding service, therefore, Mukhtiarkar concerned was directed to initiate proceedings of attachment against surety. On the basis of said order warrant of attachment was issued to Mukhtiarkar (Revenue) Taluka Garhi Yasin District Shikarpur whereby he was authorized to attach immoveable property and crop of land of above said surety namely Nisar Ahmed son of Angan Dayo to sell the same. The said order has been assailed in this revision application. The learned counsel for the applicant has contended that the impugned order of issuance of notice to surety and attachment of immoveable property of applicant was passed without forfeiting bond and giving the reason thereof, which is requirement of section 514, Cr.P.C. He further contends that only moveable property can be attached in lieu of section 514, Cr.P.C., therefore, authoriza-tion to Mukhtiarkar by trial Judge for attachment\of immoveable property is in violation of law. In support of his contention he has placed reliance on cases reported as Rana Masood Ahmed v. The State others PLD 1992 Kar. 213, Naseer Muhammad v. The State (1996 PCr.LJ 860), Muhammad Ramzan v. Muhammad Alam and 3 others (2003 PCr.LJ 461) and Tassaduq Hussain Gillani v. The State through Advocate General and 3 others 2012 PCr.LJ 1108 (SC AJ&K). The learned A.P.G. has opposed this Criminal Revision Application and argued that impugned order dated 15-1-2010 for issuance of notice to surety was in consequences of non-appearance of the accused, therefore, the said order impliedly is for forfeiture of bond. We have given our careful consideration to the arguments of learned counsel for the parties and consulted with the provision of law. The essential requirement under section 514, Cr.P.C. regulating the procedure for forfeiture of bond is reproduced as under:-- "(i) It must be proved to the satisfaction of the Court that a bond has been forfeited; (ii) the court must record grounds for such proof of forfeiture; (iii) a show-cause notice should be issued by the Court to the surety why the penalty should not be paid for such breach; (iv) if sufficient cause is not shown, or if the penalty is not paid the Court may proceed to recover the same; and (v) the recovery can be made by issuing a warrant for the attach-ment and sale of the movable property belonging to surety." Perusal of the order dated 15-1-2010 in the diary sheet supra reveals that learned Judge ATC had neither forfeited the bail bond nor has given any reason thereof. Per conditions mentioned above when a bond has been given by person for appearance of the accused before the court and accused disappears before the court, then the court has first to forfeit the bond and to record reasons thereof, thereafter to call the surety to show cause as to why the penalty should not be paid for such breach. Now we advert to the question that whether under section 514(2), Cr.P.C., a warrant for attachment of immoveable property can be issued. It is provided under section 514, Cr.P.C. that if sufficient cause is not shown and the penalty is not paid, the court may proceed to recover the same by issuing of warrants for the attachment and sale of the moveable property belonging to such person or his estate if he be dead. Moveable property is defined under section 22 of P.P.C. 1860 which does not include land as moveable property, there-fore, the order of attachment and sale of immoveable property of surety is found to be in violation of provision of section 514, Cr.P.C. Moreover, the provision of section 514, Cr.P.C. contemplates a notice to show cause why penalty should or should not be paid after forfeiture of bond. No notice is required, before forfeiture of bond. In view of the admitted fact that bond of applicant was not forfeited, thus show-cause notice was issued in violation of provision of section 514, Cr.P.C., so also without forfeiture of bond, issuance of notice and attachment of moveable property is in contravention of section 514(2), Cr.P.C., therefore, this revision application is allowed and both the orders dated 15-1-2010 and 2-11-2011 are set aside and the case is remanded to the trial court with direction to proceed afresh after compliance of above provision. HBT/N-21/Sindh Case remanded.